LRB-1633/1
MIM:cdc
2019 - 2020 LEGISLATURE
March 25, 2019 - Introduced by Representatives Pope, Hebl, Vruwink, Sargent,
Crowley, Spreitzer, Sinicki, Ohnstad, Hesselbein, Subeck, Brostoff,
Bowen, Myers and C. Taylor, cosponsored by Senators Carpenter, L. Taylor,
Johnson, Larson and Smith. Referred to Committee on Labor and Integrated
Employment.
AB116,1,4 1An Act to amend 102.03 (2), 102.81 (5), 102.82 (1) and 814.04 (intro.); and to
2create
102.80 (1) (dm), 102.81 (4g) and 103.08 of the statutes; relating to:
3prohibiting abusive work environments and allowing an individual who has
4been subjected to such an environment to bring a civil action.
Analysis by the Legislative Reference Bureau
This bill prohibits abusive work environments and allows an individual who
has been subjected to such an environment to bring a civil action.
Under current law, worker's compensation is generally the exclusive remedy of
an employee against his or her employer, a coemployee, or the employer's worker's
compensation insurer for an injury sustained while performing services growing out
of and incidental to employment.
This bill provides an exception to that exclusive remedy provision. Under this
bill, an employee who alleges that he or she has been injured by being subjected to
an abusive work environment or by being subjected to retaliation or a threat of
retaliation for opposing an abusive work environment or for initiating, or in any
manner participating in, an investigation, action, or proceeding to enforce the right
not to be subjected to an abusive work environment (collectively “unlawful
employment practice") may bring an action in circuit court against the employer or
employee who allegedly engaged in the unlawful employment practice for such relief
as the court may consider appropriate. The aggrieved employee must commence an
action within one year after the last act constituting the unlawful employment
practice occurred.

If the circuit court finds that an employer or employee has engaged in an
unlawful employment practice, the court may enjoin the employer or employee from
engaging in that practice and may grant such other relief as the court may consider
appropriate, including reinstatement of the aggrieved employee, removal from the
aggrieved employee's work area of the person who engaged in the abusive conduct,
medical expenses, back pay, front pay, compensation for pain and suffering,
compensation for emotional distress, punitive damages, and reasonable costs and
attorney fees. If the circuit court orders payment of money because of an unlawful
employment practice engaged in by an employee, the employer of the employee is
liable for that payment. If an employer is found to have engaged in an unlawful
employment practice that did not result in an adverse employment action against the
aggrieved employee, the employer is not liable for compensation for emotional
distress or punitive damages unless the abusive conduct was extreme and
outrageous.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB116,1 1Section 1 . 102.03 (2) of the statutes is amended to read:
AB116,2,122 102.03 (2) Where such Except as provided in this subsection, when those
3conditions exist the right to the recovery of compensation under this chapter shall
4be the exclusive remedy against the employer, any other employee of the same
5employer, and the worker's compensation insurance carrier. This section does not
6limit the right of an employee to bring action against any coemployee for an assault
7intended to cause bodily harm, or against a coemployee for negligent operation of a
8motor vehicle not owned or leased by the employer, against the employer or a
9coemployee for an unlawful employment practice under s. 103.08 (3),
or against a
10coemployee of the same employer to the extent that there would be liability of a
11governmental unit to pay judgments against employees under a collective
12bargaining agreement or a local ordinance.
AB116,2 13Section 2 . 102.80 (1) (dm) of the statutes is created to read:
AB116,3,1
1102.80 (1) (dm) Amounts received under s. 103.08 (6) (a) 1.
AB116,3 2Section 3 . 102.81 (4g) of the statutes is created to read:
AB116,3,103 102.81 (4g) If an injured employee who received one or more payments under
4sub. (1) begins an action against the employee's employer or a coemployee under s.
5103.08 (3) for an unlawful employment practice arising out of the same underlying
6behavior as the behavior giving rise to the injury that is compensable under sub. (1),
7the injured employee shall provide to the department a copy of all papers filed by any
8party to the action. If the injured employee is awarded medical expenses, back pay,
9or front pay under s. 103.08 (5) (a), the employer shall reimburse the department as
10provided in s. 103.08 (6) (a) 1.
AB116,4 11Section 4 . 102.81 (5) of the statutes is amended to read:
AB116,3,1312 102.81 (5) The department of justice may bring an action to collect the payment
13under sub. (4) or (4g).
AB116,5 14Section 5 . 102.82 (1) of the statutes is amended to read:
AB116,3,2315 102.82 (1) Except as provided in sub. (2) (ar), an uninsured employer shall
16reimburse the department for any payment made under s. 102.81 (1) to or on behalf
17of an employee of the uninsured employer or to an employee's dependents and for any
18expenses paid by the department in administering the claim of the employee or
19dependents, less amounts repaid by the uninsured employer, employee, or
20dependents under s. 102.81 (4) (b) or (4g). The reimbursement owed under this
21subsection is due within 30 days after the date on which the department notifies the
22uninsured employer that the reimbursement is owed. Interest shall accrue on
23amounts not paid when due at the rate of 1 percent per month.
AB116,6 24Section 6. 103.08 of the statutes is created to read:
AB116,3,25 25103.08 Abusive work environments. (1) Definitions. In this section:
AB116,4,9
1(a) “Abusive conduct" means conduct, including acts or omissions, by an
2employer or employee, that a reasonable person would find to be abusive based on
3the severity, nature, and frequency of the conduct. “Abusive conduct" includes
4repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets;
5verbal, nonverbal, or physical conduct that is threatening, intimidating, or
6humiliating; sabotage or undermining of an employee's work performance; or, as an
7aggravating factor, exploitation of an employee's known psychological or physical
8illness or disability. “Abusive conduct" does not include a single act unless that act
9is especially severe or egregious.
AB116,4,1310 (b) “Abusive work environment" means a work environment in which an
11employer or one or more of its employees, acting with intent to cause pain or distress
12to an employee, subjects that employee to abusive conduct that causes physical harm
13or psychological harm to that employee.
AB116,4,1914 (c) “Adverse employment action" means an action taken by an employer with
15respect to an employee that has the effect, in whole or in part, of a penalty, including
16dismissal or suspension from employment, demotion, denial of a promotion,
17unfavorable transfer or reassignment, reduction in compensation, or denial of
18increased compensation. “Adverse employment action" also includes a constructive
19discharge.
AB116,4,2120 (d) “Aggrieved employee" means an employee who brings an action under sub.
21(3) alleging that he or she has been injured by an unlawful employment practice.
AB116,5,222 (e) “Constructive discharge" means a situation in which an employee resigns
23from employment because the employee reasonably believes that he or she was
24subjected to an abusive work environment and, prior to the employee resigning, the

1employer was aware of the abusive conduct that gave rise to the abusive work
2environment and the employer failed to stop it.
AB116,5,33 (f) “Employee" means an individual employed by an employer.
AB116,5,94 (g) “Employer" means a person engaging in any activity, enterprise, or business
5in this state employing one or more persons on a permanent basis. “Employer"
6includes the state and any office, department, independent agency, authority,
7institution, association, society, or other body in state government created or
8authorized to be created by the constitution or any law, including the legislature and
9the courts.
AB116,5,1110 (h) “Physical harm" means the impairment of an individual's physical health
11or bodily integrity.
AB116,5,1312 (i) “Psychological harm" means the impairment of an individual's mental
13health.
AB116,5,1514 (j) “Retaliate" means to take an action that negatively affects the terms,
15conditions, and privileges of an employee's employment.
AB116,5,1716 (k) “Unlawful employment practice" means an unlawful employment practice
17prohibited under sub. (2) (a) or (b).
AB116,5,20 18(2) Abusive work environment prohibited. (a) It is an unlawful employment
19practice for an employer or employee to subject an employee to an abusive work
20environment.
AB116,5,2321 (b) It is an unlawful employment practice for an employer or employee to
22retaliate or threaten to retaliate in any manner against an employee for any of the
23following reasons:
AB116,5,2424 1. Because the employee opposed an unlawful employment practice.
AB116,6,4
12. Because the employee initiated, testified in, assisted in, or in any other
2manner participated in an investigation, action, or proceeding to enforce a right
3under this section, including any internal investigation or proceeding, any mediation
4or arbitration proceeding, or any court action.
AB116,6,65 3. Because the employer believes that the employee engaged in conduct
6described in subd. 1. or 2.
AB116,6,87 (c) The prohibitions under pars. (a) and (b) may be enforced only by a civil cause
8of action brought under sub. (3).
AB116,6,16 9(3) Civil cause of action. In addition to obtaining any other remedy provided
10by law, an employee who alleges that he or she has been injured by an unlawful
11employment practice may bring an action in circuit court against the employer and,
12if applicable, the employee who allegedly engaged in the unlawful employment
13practice for such relief under sub. (5) as the court considers appropriate. An
14employee must commence an action under this subsection within one year after the
15last act constituting the unlawful employment practice occurred or be barred from
16commencing an action.
AB116,6,19 17(4) Affirmative defenses. (a) If the alleged unlawful employment practice did
18not result in an adverse employment action against the aggrieved employee, the
19employer may plead as an affirmative defense that all of the following are true:
AB116,6,2120 1. The employer exercised reasonable care to prevent and promptly correct the
21abusive conduct that is the basis for the aggrieved employee's cause of action.
AB116,6,2422 2. The aggrieved employee unreasonably failed to take advantage of
23appropriate preventive or corrective opportunities the employer provided to prevent
24or correct the abusive conduct described under subd. 1.
AB116,7,4
1(b) If the alleged unlawful employment practice resulted in an adverse
2employment action against the aggrieved employee, the employer may plead as an
3affirmative defense that the aggrieved employee's complaint is based on any of the
4following:
AB116,7,75 1. An adverse employment action that was reasonably taken for poor
6performance or misconduct by the aggrieved employee or for the employer's economic
7necessity.
AB116,7,98 2. An adverse employment action that was taken in response to a reasonable
9performance evaluation of the aggrieved employee.
AB116,7,1110 3. A reasonable investigation of a potentially illegal or unethical activity by the
11aggrieved employee.
AB116,7,1512 (c) An employee who is alleged to have engaged in an unlawful employment
13practice may plead as an affirmative defense that the employee engaged in that
14practice at the direction of the employer under an actual or implied threat of an
15adverse employment action against the employee for not engaging in that practice.
AB116,8,2 16(5) Relief. (a) Subject to par. (b) and sub. (6) (a) 1., if the circuit court finds
17that an employer or employee has engaged in an unlawful employment practice, the
18court may enjoin the employer or employee from engaging in that practice and may
19grant other relief the court considers appropriate, including reinstatement of the
20aggrieved employee, removal of the person who engaged in the abusive conduct
21giving rise to the unlawful employment practice from the aggrieved employee's work
22area, medical expenses, back pay, front pay, compensation for pain and suffering,
23compensation for emotional distress, punitive damages under s. 895.043, and,
24notwithstanding s. 814.04, reasonable costs and attorney fees. If the circuit court
25orders any payment under this paragraph because of an unlawful employment

1practice engaged in by an employee, the employer of the employee who engaged in
2an unlawful employment practice is liable for that payment.
AB116,8,63 (b) If an employer is found to have engaged in an unlawful employment practice
4that did not result in an adverse employment action against the aggrieved employee,
5the employer is not liable for compensation for emotional distress or punitive
6damages unless the abusive conduct was extreme and outrageous.
AB116,8,8 7(6) Effect on other laws. (a) This section does not relieve any person from
8any duty, liability, or penalty provided by any other law except as follows:
AB116,8,209 1. If the worker's compensation insurer of an employer that is ordered to pay
10medical expenses under sub. (5) (a) or the department, if the employer is uninsured,
11has paid or is obligated to pay medical expenses under ch. 102 for an injury arising
12out of the same underlying behavior as the behavior giving rise to the unlawful
13employment practice for which the employer is liable, or if the worker's
14compensation insurer of an employer that is ordered to pay back pay or front pay
15under sub. (5) (a) or the department, if the employer is uninsured, has paid or is
16obligated to pay disability benefits under ch. 102 for such an injury for the same
17period as back or front pay is awarded under sub. (5) (a), the court shall order the
18employer to reimburse the insurer or department for the amount of those expenses
19or benefits paid or payable and to pay to the aggrieved employee any balance of the
20amount awarded under sub. (5) (a) remaining after that reimbursement.
AB116,9,521 2. If a self-insured employer has paid or is obligated to pay medical expenses
22under ch. 102 for an injury arising out of the same underlying behavior as the
23behavior giving rise to the unlawful employment practice for which the employer is
24liable, or a self-insured employer has paid or is obligated to pay disability benefits
25under ch. 102 for such an injury for the same period as back or front pay is awarded

1under sub. (5) (a), the court shall reduce the amount awarded under sub. (5) (a) for
2medical expenses, back pay, or front pay by the amount of those medical expenses or
3disability benefits that the employer has paid or is obligated to pay under ch. 102 and
4order the employer to pay to the aggrieved employee any balance of the amount
5awarded under sub. (5) (a) remaining after that reduction.
AB116,9,136 (b) An aggrieved employee who has claimed worker's compensation or
7payments under s. 102.81 (1) for an injury arising out of the same underlying
8behavior as the behavior giving rise to the unlawful employment practice for which
9the aggrieved employee brings an action under sub. (3) shall provide notice of the
10action and copies of all papers filed by a party to the action to the employer's worker's
11compensation insurer or, if the employer is uninsured, to the department and shall
12provide notice of the worker's compensation proceeding and copies of all papers filed
13by a party to the proceeding to the court and to all parties to the action.
AB116,7 14Section 7. 814.04 (intro.) of the statutes is amended to read:
AB116,9,19 15814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
16(b), 100.30 (5m), 103.08 (5) (a), 106.50 (6) (i) and (6m) (a), 115.80 (9), 767.553 (4) (d),
17769.313, 802.05, 814.245, 895.035 (4), 895.044, 895.443 (3), 895.444 (2), 895.445 (3),
18895.446 (3), 895.506, 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b), and 995.10 (3),
19when allowed costs shall be as follows:
AB116,8 20Section 8. Initial applicability.
AB116,9,2321 (1) Abusive work environment. This act first applies to an unlawful
22employment practice, as defined in s. 103.08 (1) (k), committed on the effective date
23of this subsection.
AB116,9,2424 (End)
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